Exhibit 2.1
AGREEMENT AND PLAN OF MERGER OF
NETWORK APPLIANCE, INC.
(A DELAWARE CORPORATION)
AND
NETWORK APPLIANCE, INC.
(A CALIFORNIA CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER dated as of this 1st day of November,
2001 (the "Agreement"), is between Network Appliance, Inc., a Delaware
corporation ("Network Appliance Delaware"), and Network Appliance, Inc., a
California corporation ("Network Appliance California"). Network Appliance
Delaware and Network Appliance California are collectively referred to herein as
the "Constituent Corporations."
RECITALS
A. Network Appliance Delaware is a corporation duly organized and existing
under the laws of the State of Delaware and has a total authorized capital stock
of Eight Hundred Ninety Million (890,000,000) shares, $0.001 par value. The
number of shares of Common Stock of Network Appliance Delaware authorized to be
issued is Eight Hundred Eighty-Five Million (885,000,000), $0.001 par value. The
number of shares of Preferred Stock of Network Appliance Delaware authorized to
be issued is Five Million (5,000,000), $0.001 par value. The Preferred Stock of
Network Appliance Delaware is undesignated as to series, rights, preferences,
privileges or restrictions. As of the date hereof, one thousand (1,000) shares
of Common Stock were issued and outstanding, all of which were held by Network
Appliance California, and no shares of Preferred Stock were issued and
outstanding.
B. Network Appliance California is a corporation duly organized and
existing under the laws of the State of California and has a total authorized
capital stock of Eight Hundred Ninety Million (890,000,000) shares. The number
of shares of Common Stock of Network Appliance California authorized to be
issued is Eight Hundred Eighty-Five Million (885,000,000), no par value. The
number of shares of Preferred Stock of Network Appliance California authorized
to be issued is Five Million (5,000,000), no par value.
C. The Boards of Directors of the Constituent Corporations deem it
advisable and in the best interests of the Constituent Corporations that Network
Appliance California merge with and into Network Appliance Delaware upon the
terms and conditions herein provided.
D. The respective Boards of Directors and Shareholders of Network
Appliance Delaware and Network Appliance California have approved this Agreement
and have directed that this Agreement be executed by the undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Network Appliance Delaware and Network Appliance California hereby
agree, subject to the terms and conditions hereinafter set forth, as follows:
I. MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
General Corporation Law of the State of Delaware and the General Corporation Law
of the State of California, Network Appliance California shall be merged with
and into Network Appliance Delaware (the "Merger"), the separate existence of
Network Appliance California shall cease and Network Appliance Delaware shall
survive the Merger and shall continue to be governed by the laws of the State of
Delaware, and Network Appliance Delaware shall be, and is herein sometimes
referred to as, the "Surviving Corporation," and the name of the Surviving
Corporation shall be Network Appliance, Inc.
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1.2 Filing and Effectiveness. The Merger shall become effective when an
executed counterpart of this Agreement meeting the requirements of the Delaware
General Corporation Law shall have been filed with the Secretary of State of the
State of Delaware.
The date and time when the Merger shall become effective, as aforesaid, is
herein called the "Effective Date."
1.3 Effect of the Merger. Upon the Effective Date, the separate existence
of Network Appliance California shall cease and Network Appliance Delaware, as
the Surviving Corporation, (i) shall continue to possess all of its assets,
rights, powers and property as constituted immediately prior to the Effective
Date, (ii) shall be subject to all actions previously taken by its and Network
Appliance California's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of Network Appliance
California in the manner more fully set forth in Section 259 of the General
Corporation Law of the State of Delaware, (iv) shall continue to be subject to
all of the debts, liabilities and obligations of Network Appliance Delaware as
constituted immediately prior to the Effective Date, and (v) shall succeed,
without other transfer, to all of the debts, liabilities and obligations of
Network Appliance California in the same manner as if Network Appliance Delaware
had itself incurred them, all as more fully provided under the applicable
provisions of the General Corporation Law of the State of Delaware and the
General Corporation Law of the State of California.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
Network Appliance Delaware as in effect immediately prior to the Effective Date
of the Merger (the "Certificate of Incorporation") shall continue in full force
and effect as the Certificate of Incorporation of the Surviving Corporation
until duly amended in accordance with the provisions thereof and applicable law.
2.2 Bylaws. The Bylaws of Network Appliance Delaware as in effect
immediately prior to the Effective Date shall continue in full force and effect
as the Bylaws of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.3 Directors and Officers. The directors and officers of Network
Appliance Delaware immediately prior to the Effective Date shall be the
directors and officers of the Surviving Corporation until their successors shall
have been duly elected and qualified or until as otherwise provided by law, the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 Network Appliance California Common Shares. Upon the Effective Date,
every one (1) share of Network Appliance California Common Stock, no par value,
issued and outstanding immediately prior thereto shall by virtue of the Merger
and without any action by the Constituent Corporations, the holder of such
shares or any other person, be converted into and exchanged for one (1) fully
paid and nonassessable share of Common Stock, par value $0.001 per share, of the
Surviving Corporation.
3.2 Network Appliance California Stock Option Plans
(a) Upon the Effective Date, the Surviving Corporation shall assume and
continue the stock option plans and all other employee benefit plans of Network
Appliance California. Each outstanding and unexercised option or other right to
purchase Network Appliance California Common Stock shall become an option or
right to purchase the Surviving Corporation's Common Stock on the basis of one
(1) share of the Surviving Corporation's Common Stock for each share of Network
Appliance California Common Stock issuable pursuant to any such option, or stock
purchase right, on the same terms and conditions and at an exercise price per
share equal to the exercise price applicable to any such Network Appliance
California option or stock purchase right at the Effective Date. There are no
options, purchase rights for or securities convertible into Preferred Stock of
Network Appliance California.
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(b) A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of options or stock purchase rights
equal to the number of shares of Network Appliance California Common Stock so
reserved immediately prior to the Effective Date of the Merger.
3.3 Network Appliance Delaware Common Stock. Upon the Effective Date of
the Merger, each share of Common Stock, par value $0.001 per share, of Network
Appliance Delaware issued and outstanding immediately prior thereto shall, by
virtue of the Merger and without any action by Network Appliance Delaware, or
the holder of such shares or any other person, be cancelled and returned to the
status of authorized and unissued shares of Common Stock.
3.4 Exchange of Certificates. After the Effective Date of the Merger, each
holder of an outstanding certificate representing shares of Network Appliance
California Common Stock may, at such stockholder's option, but need not,
surrender the same for cancellation to Computershare Investor Series as exchange
agent (the "Exchange Agent"), and each such holder shall be entitled to receive
in exchange therefor a certificate or certificates representing the number of
shares of the Surviving Corporation's Common Stock into which the surrendered
shares were converted as herein provided. Unless and until so surrendered, each
outstanding certificate theretofore representing shares of Network Appliance
California Common Stock shall be deemed for all purposes to represent the number
of shares of the Surviving Corporation's Common Stock into which such shares of
Network Appliance California Common Stock were converted in the Merger.
The registered owner on the books and records of the Surviving Corporation
or the Exchange Agent of any shares of stock represented by such outstanding
certificate shall, until such certificate shall have been surrendered for
transfer or conversion or otherwise accounted for to the Surviving Corporation
or the Exchange Agent, have and be entitled to exercise any voting and other
rights with respect to and to receive dividends and other distributions upon the
shares of Common Stock of the Surviving Corporation represented by such
outstanding certificate as provided above.
Each certificate representing Common Stock of the Surviving Corporation so
issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of Network Appliance
California so converted and given in exchange therefore, unless otherwise
determined by the Board of Directors of the Surviving Corporation in compliance
with applicable laws, or other such additional legends as agreed upon by the
holder and the Surviving Corporation.
If any certificate for shares of Network Appliance Delaware stock is to be
issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer, that such transfer otherwise be proper and comply with
applicable securities laws and that the person requesting such transfer pay to
Network Appliance Delaware or the Exchange Agent any transfer or other taxes
payable by reason of issuance of such new certificate in a name other than that
of the registered holder of the certificate surrendered or establish to the
satisfaction of Network Appliance Delaware that such tax has been paid or is not
payable.
IV. CONDITIONS TO THE MERGER
The obligations of the Constituent Corporations under this Agreement are
subject to the fulfillment, or the waiver by the parties, on or before the
Effective Date, of each of the following:
4.1 The shareholders of Network Appliance California shall have
approved the Merger.
4.2 The sole stockholder of Network Appliance Delaware shall have
approved the Merger.
4.3 All consents required to be obtained by the Constituent
Corporations to effect the Merger shall have been obtained.
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V. GENERAL
5.1 Further Assurances. From time to time, as and when required by Network
Appliance Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Network Appliance California such deeds and other
instruments, and there shall be taken or caused to be taken by it such further
and other actions as shall be appropriate or necessary in order to vest or
perfect in or conform of record or otherwise by Network Appliance Delaware the
title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of Network Appliance
California and otherwise to carry out the purposes of this Agreement, and the
officers and directors of Network Appliance Delaware are fully authorized in the
name and on behalf of Network Appliance California or otherwise to take any and
all such action and to execute and deliver any and all such deeds and other
instruments.
5.2 Abandonment. At any time before the Effective Date, this Agreement may
be terminated and the Merger may be abandoned for any reason whatsoever by the
Board of Directors of either Network Appliance California or of Network
Appliance Delaware, or of both, notwithstanding the approval of this Agreement
by the shareholders of Network Appliance California or the sole stockholder of
Network Appliance Delaware. In the event of the termination of this Agreement,
the Agreement shall become void and of no effect and there shall be no
obligations on either Constituent Corporation or their respective Board of
Directors or shareholders with respect thereto.
5.3 Amendment. The Boards of Directors of the Constituent Corporations may
amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretary of State of the State of
Delaware, provided that an amendment made subsequent to the adoption of this
Agreement by the stockholders of Network Appliance California shall not: (1)
alter or change the amount or kind of shares, securities, cash, property and/or
rights to be received in exchange for or on conversion of all or any of the
shares of any class or series thereof of Network Appliance California, (2) alter
or change any term of the Certificate of Incorporation of the Surviving
Corporation to be effected by the Merger, or (3) alter or change any of the
terms and conditions of this Agreement if such alteration or change would
adversely affect the holders of any class or series of capital stock of Network
Appliance California.
5.4 Registered Office. The registered office of the Surviving Corporation
in the State of Delaware is 0000 Xxxxxx Xxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of
Xxxxxxxxx, Xxxxxxxx 00000 and the Corporation Series Company is the registered
agent of the Surviving Corporation at such address.
5.5 Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 000 Xxxx Xxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000, and copies thereof will be furnished to any
stockholder of either Constituent Corporation, upon request and without cost.
5.6 Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
General Corporation Law of the State of California.
5.7 Counterparts. In order to facilitate the filing and recording of this
Agreement, the same may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same instrument.
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IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of Network Appliance, Inc., a Delaware
corporation, and the Board of Directors of Network Appliance, Inc., a California
corporation, is hereby executed on behalf of each of such two corporations and
attested by their respective officers thereunto duly authorized.
NETWORK APPLIANCE, INC.
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXXXXXX
------------------------------
Xxxxxx X. Xxxxxxxxxxx
Chief Executive Officer
Attest:
/s/ XXXXXX X. XXXXX
---------------------------
Xxxxxx X. Xxxxx
Executive Vice President Financial Operations,
Chief Financial Officer
NETWORK APPLIANCE, INC.
a California corporation
By: /s/ XXXXXX X. XXXXXXXXXXX
------------------------------
Xxxxxx X. Xxxxxxxxxxx
Chief Executive Officer
Attest:
/s/ XXXXXX X. XXXXX
---------------------------
Xxxxxx X. Xxxxx
Executive Vice President Financial Operations,
Chief Financial Officer
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